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All Indian Treaty Land Titles declared worthless. 



SPEECH 



HON. WILLIAM LAWRENCE, 



OF OHIO, 



THE INVALIDITY OF INDIAN LAND TITLES; 



DELIVERED 



IN THE HOUSE OF REPRESENTATIVES, MARCH 21, 1868. 







WASHINGTON: 
F. & J. RIVES & GEO. A. BAILEY, 

REPORTERS AND PRINTERS OF THE DEBATES OP CONGRESS. 

1868. 



Treaty-making Power — Public Lands. 



The House, as in Committee of the Whole on the 
state of the Union, having under consideration the 
President's annual message- 
Mr. LAWRENCE, of Ohio, said: 
Mr. Speaker ; I take this occasion to say to 
the House that I will at the earliest time, when 
it may be in order, submit for consideration 
the following: 

Resolved, That the Committee on the Judiciary be 
instructed to inquire and report whether public lands 
sold under treaties with Indian tribes are held by a 
valid title, and whether such lands can be sold except 
in pursuance of a law duly enacted by Congress. 

And I will present now very briefly some of 
the reasons in support of the resolution, so that 
the House may know in advance the grounds 
upon which I will ask its adoption. The am- 
ple discussions in Congress on the subject of 
the public lands have demonstrated the wisdom, 
the justice, and the expediency of so disposing 
of them as to secure their sale to actual settlers. 
Notwithstanding this there have been, and yet 
are, many and plausible pretexts for disposing 
of the public lands so as to place them in large 
tracts in the hands of monopolists and specu- 
lators, who grow rich at the expense of the toil- 
ing millions, and impoverish the agricultural 
classes by the exorbitant prices demanded and 
received when the lands are sold. 

Among the modes more recently adopted of 
disposing of the public lands in this unjust and 
ruinous mode is that of selling them by virtue 
of treaty stipulations with Indian tribes, and 
without any act of Congress to authorize it. 

I have procured from the Commissioner of 
Indian Affairs a table, showing the sales of 
Indian Trust Lands from January 1, 1864, to 
January 1, 1868 ; which I will append to my 
remarks. 



It is a fact which should not be overlooked 
that the treaty made October 1, 1859, ratified 
July 9, 1860, between the United States and 
the confederated tribes of Sacs and Foxes of 
the Mississippi, and under which more lands 
were sold than under any other, has never been 
published with the volumes of public laws, and 
was, therefore, comparatively unknown to the 
people. 

Now, sir, if the public lands of the United 
States occupied by Indian tribes can be sold in 
pursuance of treaties like this, without consult- 
ing the law-making power of the Government, 
it is high time it should be known, in order that 
some proper remedy may be applied. This 
nation has never admitted that any Indian tribe 
ever had any title to the lands in their occu- 
pancy, and consequently no power of sale was 
ever conceded to them. No tribe ever could 
make a treaty with or sell the lands in their 
occupancy to any foreign nation, or even to 
private citizens of the United States. The 
writers on public law all agree as to this, and 
no citation of authorities is necessary. These 
treaties under which sales have been made to 
private individuals assertthe novel, dangerous, 
and, as it seems to me, unwarranted right to 
divest the title of the United States simply by 
the authority of the President and Senate. I 
deny that there exists in this Government any 
such power as is asserted in these treaties, and 
I will at the proper time introduce the resolu- 
tion just submitted, in order that the subject 
of which it treats may be considered and that 
this House may assert its rights over the public 
lands. 

The treaty- making power is not defined by 



the Constitution. It is treated as a power 
already known, defined, and recognized, and 
limitations are thrown around it by the Con- 
stitution. Subject to these limitations it is as 
ample as was the treaty-making power in 
England when the Constitution was adopted. 
There "the sovereign power quo ad hoc is 
vested in the king. Whatever contracts he 
engages in no other power in the kingdom can 
legally delay, resist, or annul." (1 Black- 
stone, 257.) And Blackstone says that minis- 
ters are impeachable if from criminal motives 
they advise an improper treaty. In this country 
the power is limited as to the authority to 
make treaties by devolving it on the President 
and Senate. But all treaties are declared to 
be the supreme law. It has been maintained, 
therefore, with great force, that the treaty- 
making power is competent to execute itself 
even by the appropriation of money from the 
Treasury — that such appropriation is a law 
within article one, section eight, clause twelve, 
of the Constitution. It was so declared — 

"By William Pinckney, of Maryland, in 1816, in the 
House of Representatives, and supported by one of 
his most elaborate and able speeches. The speech 
may be found in Williston's 'Eloquence of the Uni- 
ted States,' vol. 3, page 23V— 1 Crunch, 103; 1 Wash. 
C. C. R.322; 1 Paine, 65. 

The action of the Government, however, has 
been different from this from Jay's treaty to 
this hour. And it has been said: 

"The discussion of the appropriation forthat treaty 
was an undisputed admission of therightof theHouse 
to act. The occasion was worth the error, for it gave 
birth to that magnificent oration of Fisher Ames, 
which, in honor of American literature, will be read 
in future ages in company with the oration of De- 
mosthenes for the crown." 

But as the Constitution, in article one, com- 
mits the whole subject of raising revenue to 
Congress, a treaty requiring the payment of 
money to execute it cannot of its own force be 
carried into effect so far as the payment is con- 
cerned, unless, indeed, money shall be found 
in the Treasury unappropriated by act of Con- 
gress or shall so come in. (Paschal' s Anno- 
tated Constitution, 175 ; 2 Peters, 814 : 3 Dallas, 
276; Story on Constitution, sec. 1508 ■ 4 Hall's 
Law Journal, 461; 6 Wheat., 161; 1 Kent, 
165,284; Spalding's speech, House of Repre- 
sentatives, December 19, 1867.) 

A treaty with an Indian tribe cannot dis- 
pose of public lands, and the reason is plain. 
I have already remarked that the title to the 



public domain within the boundaries of the 
United States, though there be an occupancy 
by Indians, is nevertheless in the Government. 
The Indians never did and never could have any 
title but only a right of occupancy. (Johnson 
vs. Mcintosh, 8 Wheat., 543 ; Clark vs. Smith, 
13 Peters, 195.) 

And the power to dispose of the public lands 
is expressly reserved to Congress by the Con- 
stitution. (Art. 4, sec. 3, clause 2: United 
States vs. Rogers, 4 Howard, 567 ; American 
Insurance Company vs. Cauter, 1 Peters, 542; 
19 Howard, 395, 633.) 

A power which is reserved to Congress ex- 
clusively cannot be exercised under any author- 
ity purporting to be conferred by treaty. 

The authorities which explain and illustrate 
the treaty- making power have been collected 
by the gentleman from Massachusetts, [Mr. 
Butler,] and I present them, so that they 
may be before the House for the proper under- 
standing of the land titles purporting to have 
been created under treaties with the Indian 
tribes. 

The treaty-making power was discussed in 
the national convention which framed the Con- 
stitution in 1787, as follows : May 29, 5 Eliot's 
Debates, 127, 131; June 13, ibid., 190; June 
15, ibid.. 192; June 18, ibid., 209 ; June 26, 
ibid., 245; July 17, ibid., 322,375; August 6, 
ibid., 379 ; August 7, ibid., 382, 383 ; August 
15, ibid., 427, 4.28, 467, 469, 470; August 25, 
ibid., 478; August 27, ibid., 488; September 
4, ibid., 507; September 7, ibid., 522, 523, 
524 ; September 8, ibid. 

It was discussed in the Virginia convention, 
June 18, 1788. (8 Eliot's Debates, 496, 514, 
516, 660.) 

It was said by Mr. Madison that " if the 
President got up a treaty by surprise he would 
be impeached." 

It was discussed in the North Carolina con- 
vention, July 28, 1788,(3 Eliot, 115,132,245;) 
in Maryland, (2 Eliot, 553;) in the Federalist, 
Nos. 21 and 63, (Dawson's Fed., 147, 148 ;) in 
the debates on Jay's Treaty, March 2, 1796 ; 
March 7, March 24; 1 Benton's Abridgment, 
642, 643, 644, 645, 646, 648, 651, 671, 677, 678, 
679, 680; March 25, President's Message; 
March 30, 1 Benton's Abridgment, 692, 693; 
March 31, 1796, 1 Benton, 692, 693, 696; April 



6, 1796, 1 Benton, 696, 698, 699, 700, 701, 702. 
The Opinions of Jefferson. 

Letter to Colonel Monroe, March 20, 1796. 
(Jefferson's Works, edition of 1830, vol. 3, 
pp. 323-4.) 

Letter to James Madison, March 27, 1796. 
(76., 324-5.) 

Letter to Madison,' April 19, 1796. {lb., 
326-7.) 

Letter to Breckinridge, August 12, 1803. 
(lb., 542-3.) 
Opinions of George Tucker. 

Tucker's Blackstone, (vol. 1, part 1, appen- 
dix. 339-40.) 
Contemporary Opinions of Washington. 

Message of March 30, 1796. 

Marshall's Life of Washington, (vol. 2. p. 
382; 1 Benton's Abridgment, note, p. 702.) 
Judicial Opinions. 

Foster k Elam vs. Neilson, (2 Peters, 253- 
314.) 

United States vs. Arredondo, (6 Peters, 
711-2.) 

United States vs. Percheman, (7 Peters, 88.) 

Case of Metzger, (1 Barbour. 248-258.) 

Turner vs. American Baptist Missionary 
Union, (5 McLean, 344.) 

Mr. Speaker, the objection to these Indian 
treaties is twofold ; first, as to the asserted power 
to dispose of the public lands ; and second, the 
fact that lands have been sold in large tracts, 
thus creating vast monopolies and subverting 
the homestead policy of the Government. And 
while upon this subject I desire to say, as I have 
often before said, that land monopoly is a great, 
and, I fear, a growing evil. Let me state some 
facts to prove this. 

The Government, since its organization, has 
sold lands amounting to over 154,000,000 acres. 

Of the lands sold, there remain in private 
hands, not reduced to occupancy as farms, 
over 30,000,000 acres.. 

The Government, grants of lands to western 
and southern States, to aid in constructing 
railroads, amount to over 57,000,000 acres. 

The grants to aid in the construction of 
canals amount to over 17,000,000 acres. 

The grants to different lines of Pacific rail- 
road companies, 124,000,000 acres. 

The amount of land granted and to be granted 
to the States under the act of Congress of July 



2, 1862, to aid in the establishment of agricul- 
tural colleges, reaches (Laws of 1862, p. 504) 
9,600,000 acres. 

The lands granted to the States under dif- 
ferent acts of Congress as "swamp and over- 
flowed lands,'' amount to 43,000,000 acres. 
(See Julian's speech, House of Representa- 
I tives, March 6, 1868.) 

This subject is further illustrated by letters 
I which I have received from the Commissioner 
J of the General Land Office, as follows: 

Department of the Interior, 
General Land Office, February 6, 186S. 
Sir: I have had the honor to receive your letter 
of this date, and in reply have to refer you to the In- 
; dian office for the information therein requested as 
to the lands in Indian reservations sold to indi- 
viduals or companies within the last three years. In 
answer to your second inquiry I have to state that 
the selections in place for agricultural colleges 
under the act of July 2, 1862, amounted on the 30th 
June, 1867, to one million one hundred and fifty-nine 
thousand four hundred and ninety-nine acres, and 
I the scrip issued under the same law to non-public- 
laiid-holding States, amounts to five million three 
hundred and forty thousand acres, which is exclusive 
| of two hundred and seventy thousand acres issued to 
i North Carolina, and the location thereof prohibited 
j under the joint resolution of March 29, 1867. 
Very respectfully, your obedient servant, 

JOS. S. WILSON, Commissioner. 
! Hon. "William Lawrence, House of Representatives. 

Department of the Interior, 
General Land Office, February 8, 1868. 

Sir: I had the honor this morning to receive your 
letter dated the 6th instant, and in reply to your first 
and second inquiries have to state that the quantity 
of land inuring under grants by act of Congress for 
railroad purposes is estimated at 181,588,581 acres, 
exclusive of 3.223.413 acres granted for wagon roads, 
and up to the 30th of June last there were certified 
to the proper beneficiaries a fraction over twenty- 
one millions. (See Annual Report of October 15, 
1867.) 

In reply to your third inquiry I have to state that 
the quantity of public land which remained unsold 
and unappropriated in the States and Territories on 
the 30th of Juue last, including 369.529,600 acres, 
as the area of the American purchase from Russia, 

was 1,414,567,571 acres. 

The area surveyed on the 30th 

June, 1867, was 485,311.778 acres. 

Of the aforesaid surveyed area the 

area undisposed of was 64,880,952 acres. 

I have no data for forming a judgment of the prob- 
able amount of arable land not surveyed. 

Very respectfully, your obedient servant, 

JOS. S. WILSOX, Commissioner. 
Hon. William Lawrence, House of Representatives. 

It was* to remedy some of the evils of land 

monopoly that I deemed it my duty, on the 20th 

of January, to introduce a bill which is now 

pending, as follows : 

A bill to secure to actual settlers the right to pur- 
chase lands hereafter granted to railway and other 
companies. 

Be it enacted^ by the Senate and House of Representa- 
tives of the United States of America in Congress assem- 
bled. That all lands which may hereafter be granted 
to railway or other companies to aid in the construc- 
tion of railways or other works, whether under ex- 



6 



isting law or laws hereafter enacted, shall be sold by 
sucbgrnntees only to actual settlers in quantities not 
greater than one half section to any one person, and 
at a price not exceeding SI 25 per acre, with interest 
at six per cent, per annum from the date of the 
grant to such company; and the Secretary of tho 
Interior shall have power to prescribe rules and regu- 
lations for carrying this act into effect; and no person 
shall be deemed an actual settler who does not fur- 
nish evidence in such form as the Secretary of the 
Interior may prescribe, that it is his or her intention 
to enter upon, improve, and reside upon the lands he 
or she may purchase as and for a homestead. 

The Committee on Public Lands subse- 
quently reported a bill designed to remedy the 
same evils, which is as follows: 

A bill to regulate the disposition of lands that may 
be hereafter granted to aid in the construction of 
railways. 

Be it enacted by the Senate and House of Representa- 
tives of the United States of America in Congress assem- 
bled, That all lands which may hereafter be granted to 
aid in the construction of rail ways shall, unless other- 
wise expressly provided in the act granting the same, 
be sold by the State or Territory to which said grant is 
made to actual settlers, in quantities no greater than 
one quarter section to anyone person, and at a price 
to befixed by the company which shall build theroad, 
not exceeding $2 50 per acre, and the amount received 
for the said land shall be paid by the State or Territory 
to the company constructing said road, after deduct- 
ing all the expense incurred by the State or Territory 
in making such sales. And all sales so made shall 
be made upon the following terms, namely: one 
fourth of the amount thereof shall be paid in cash 
at the time of purchase, and the balance thereof 
shall be paid by the settler in three annual install- 
ments, with interest not to exceed seven per cent, 
per annum, until paid. And the Secretary of the 



Interior shall have power to prescribe rules and regu- 
lations for carrying this actinto effect; and no person 
shall be deemed an actual settler who does not fur- 
I nish evidence, in such form as the Governor of a 
i State or Territory may prescribe, that it is his or her 
. intention to enter upon, improve, and reside upon 
I the lands he or she may purchase: Provided further, 
I That any alternate even-numbered sections along 
I the line of any railway, which have not been sold or 
j entered upon by actual settlers within ten years from 
I and after, the survey and location of said railway, 
| shall be disposed of on the same terms as other pub- 
j lie lands of the United States. 

As these bills relate to a kindred subject and 
| are yet pending I have deemed it. proper to 
j present them here, and I hope they and the facts 
! I have stated may be of some service in illus- 
trating the policy pursued as to the public lands 
and the resolution which I have submitted. 

This subject has attracted the attention of 
the public in many forms. 

The Republican State convention in Indiana, 
on the 20th February, 1868, adopted a platform 
of principles, which declares: 

"Eighth. The public lands are the property of the 
people. Monopolies of them either by individuals- 
or corporations should be prohibited. They should 
be reserved for actual settlers, and as a substantial 
recognition of the services of the Union officers and 
soldiers in the late civil war, they should each be 
allowed one hundred and sixty acres thereof." 

I hope the resolution when it shall be offered 

may receive the sanction of the House. 



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